32-560. Elective office; vacancy; when.

Every elective office shall be vacant, except as provided in section 32-561, upon the happening of any one of the following events at any time before the expiration of the term of such office:

(1) Resignation of the incumbent;

(2) Death of the incumbent;

(3) Removal of the incumbent from office;

(4) Decision of a competent tribunal declaring the office of the incumbent vacant;

(5) Incumbent ceasing to be a resident of the state, district, county, township, or precinct in which the duties of his or her office are to be exercised or for which he or she may have been elected;

(6) Failure to elect at an election when there is no incumbent to continue in office until his or her successor is elected and qualified;

(7) The candidate who received the highest number of votes is ineligible, disqualified, deceased, or for any other reason unable to assume the office for which he or she was a candidate;

(8) Forfeiture of office as provided by law;

(9) Conviction of a felony or of any public offense involving the violation of the oath of office of the incumbent; or

(10) Incumbent of a high elective office assuming another elective office as provided in subsections (2) through (4) of section 32-604.

Source

Cross References

Annotations

1. Right to hold over

2. Vacancies by removal

3. Miscellaneous

1. Right to hold over

A sheriff appointed by the county board, to fill a vacancy caused by the death of the incumbent, is an incumbent to continue in office until his successor is elected and qualified under subdivision (6) of this section. State ex rel. Boone County Attorney v. Willott, 103 Neb. 798, 174 N.W. 429 (1919).

The county commissioners, elected at the first election for officers of a new county, hold their offices only until their successors are elected, at the next general election, and have qualified. State ex rel. Nichols v. Field, 26 Neb. 393, 41 N.W. 988 (1889).

2. Vacancies by removal

Question as to the removal by a district judge of his family residence from the judicial district ipso facto creating a vacancy in the office of district judge was raised but not decided. Wustrack v. Hall, 95 Neb. 384, 145 N.W. 835 (1914).

Redistricting of county, where there was no removal by incumbent, does not vacate office of commissioner. State ex rel. Connolly v. Haverly, 62 Neb. 767, 87 N.W. 959 (1901).

The removal of a county commissioner from the district in which he was elected vacates his office even though he may continue to reside within the county. State ex rel. Malloy v. Skirving, 19 Neb. 497, 27 N.W. 723 (1886).

3. Miscellaneous

This section is silent about compensation. Hogan v. Garden County, 268 Neb. 631, 686 N.W.2d 356 (2004).

This provision preserves office for the holder thereof engaged in military service upon his return under certain conditions. State ex rel. Johnson v. Chase, 147 Neb. 758, 25 N.W.2d 1 (1946).

Conduct on the part of nominee for the office of presidential elector which clearly indicates that his intention, if elected, is to vote for the candidates of another political party, creates a vacancy in the office of each as a candidate, and a judicial determination of the existence of the vacancy is necessary. State ex rel. Nebraska Rep. State C. Com. v. Wait, 92 Neb. 313, 138 N.W. 159 (1912), 43 L.R.A.N.S. 282 (1912).

The general law providing for the filling of vacancies was intended as a regulation for all vacancies and includes offices created after its enactment unless full provision is contained in the law creating the office. State ex rel. Mortensen v. Furse, 89 Neb. 652, 131 N.W. 1030 (1911).

An office does not become vacant for failure to elect a successor if there is an incumbent to continue in office until his successor is elected and qualified. State ex rel. Shaw v. Rosewater, 79 Neb. 450, 113 N.W. 206 (1907).

This section and section 11-115 are in pari materia and should be construed together. Section 11-115 merely provides another cause of vacancy in addition to those included within this section. State ex rel. Berge v. Lansing, 46 Neb. 514, 64 N.W. 1104 (1895), 35 L.R.A. 124 (1895).

The ineligibility of a candidate declared elected does not create a vacancy where there is an incumbent to continue in office. Richards v. McMillin, 36 Neb. 352, 54 N.W. 566 (1893).

The words ceasing to be a resident of refer to an absence with an intention to remain away indefinitely as distinguished from a temporary absence for a definite period. Prather v. Hart, 17 Neb. 598, 24 N.W. 282 (1885).